ABSTRACT
Native American water rights do not fall entirely in either the riparian or appropriations school of thought. In a 1908 case, the United States Supreme Court found after non-Indian settlers diverted water away from the reservation, that water rights were reserved for the Indians by necessary implication when the 1888 treaty was signed.* The Court found it unreasonable to believe that Indians would reserve land for farming without also reserving water to make such use possible. In the years following the decision in Winters, the United States represented the Indian tribes on many occasions that seemingly compromised the Winters rights. In many instances, these decrees still control Indian rights to water.† The Supreme Court held in 1963 that neither Congress nor the president could have intended to establish reservations without reserving for those reservations water necessary to make them habitable.‡ The general rule is that the creation of reservations necessarily carried with it a reservation of water necessary to sustain the reservation for human habitation.
